Superior Court to review former ESU professor's conviction

Tuesday

Apr 28, 2009 at 10:50 PM

Attorney James Swetz on Tuesday argued an appeal for his client, former East Stroudsburg University professor Richard Nyamwange, who is serving time in time prison. A jury in September 2007 acquitted Nyamwange of rape, but convicted him of sexually assaulting a former student at his East Stroudsburg home in November 2006.

Attorney James Swetz on Tuesday argued an appeal for his client, former East Stroudsburg University professor Richard Nyamwange, who is serving time in time prison. A jury in September 2007 acquitted Nyamwange of rape, but convicted him of sexually assaulting a former student at his East Stroudsburg home in November 2006.

Swetz asked the judges Tuesday to reverse the jury's verdict and grant Nyamwange a new trial on the following grounds:

Monroe County Court Judge Margherita Worthington should have given the jury a "mistake of fact" instruction for deliberation involving the consent issue.

Nyamwange's victim testified she moved her butt farther onto Nyamwange's bed and had her mouth open when he kissed her. Swetz said that, even though the victim said she didn't consent to sexual contact, her actions could have been interpreted as her giving consent.

Swetz said Worthington should have made this part of the instruction to the jury.

A witness testified he was the victim's boyfriend at the time Nyamwange sexually assaulted her. The boyfriend testified to having sex with her, but could not recall if it was shortly before or after the assault.

The victim told a hospital nurse after the assault that she had not sex with anyone else prior to that. But, a "mixture of DNA," meaning DNA from her and more than one other person, was found on her underwear.

Worthington did not allow Swetz to cross-examine the prosecution's DNA expert to see who the other sources of that DNA were. Swetz said it's possible the victim lied by saying she was assaulted so as not to upset her boyfriend.

Assistant District Attorney Michael Rakaczewski, who prosecuted the case, raised the following points in response to Swetz's argument:

In this jurisdiction, "mistake of fact" involving consent is not a defense in a case involving a rape charge, even though Nyamwange eventually was acquitted of that particular charge, and therefore is not appropriate to be made part of the instruction to a jury. There is no evidence of the victim having any motive to lie about what happened to her, especially since her boyfriend did not come across as the jealous, controlling type.

This is one of the cases the Superior Court judge panel will review and later issue an opinion on.